Opinion
No. 2 CA-CR 2018-0079-PR
08-13-2018
THE STATE OF ARIZONA, Respondent, v. JOHN JUSTIN ALDERETE, Petitioner.
COUNSEL Kent P. Volkmer, Pinal County Attorney By Geraldine L. Roll, Deputy County Attorney, Florence Counsel for Respondent The Law Office of Bret Huggins, Florence By Bret H. Huggins Counsel for Petitioner
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Petition for Review from the Superior Court in Pinal County
No. S1100CR201601732
The Honorable Joseph R. Georgini, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL Kent P. Volkmer, Pinal County Attorney
By Geraldine L. Roll, Deputy County Attorney, Florence
Counsel for Respondent The Law Office of Bret Huggins, Florence
By Bret H. Huggins
Counsel for Petitioner
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred. ESPINOSA, Judge:
¶1 John Alderete seeks review of the trial court's order summarily denying his of-right petition for post-conviction relief filed pursuant to Rule 32, Ariz. R. Crim. P. We will not disturb that ruling unless the court abused its discretion. See State v. Roseberry, 237 Ariz. 507, ¶ 7 (2015). Alderete has not shown such abuse here.
¶2 Alderete pled guilty to attempted first-degree murder and the trial court sentenced him to a 10.5-year prison term. He sought post-conviction relief, arguing the factual basis for his plea was insufficient, his plea was involuntary because he did not understand the requisite intent required for accomplice liability, and his trial counsel was ineffective in failing to establish an adequate factual basis, explain to him the requisite intent, investigate his case, and object at sentencing when the court imposed a prison term greater than the statutory maximum of ten years. The court summarily denied relief, and this petition for review followed.
¶3 On review, Alderete first repeats his argument that the factual basis for his guilty plea was insufficient because it did not establish his liability as an accomplice. The factual basis required to support a plea may be determined from the extended record, which may include presentence reports, transcripts from preliminary hearings, proceedings before the grand jury, and other sources. State v. Sodders, 130 Ariz. 23, 25 (App. 1981). A sufficient basis may "be established by 'strong evidence' of guilt and does not require a finding of guilt beyond a reasonable doubt." State v. Salinas, 181 Ariz. 104, 106 (1994), quoting State v. Wallace, 151 Ariz. 362, 365 (1986). Further, "Arizona courts have consistently held that it is sufficient that the court, not the defendant, satisfy itself of the factual basis for the plea." State v. Herndon, 109 Ariz. 147, 148 (1973). Thus, a defendant's "understanding of the legal terminology is not determinative." State v. Ovante, 231 Ariz. 180, ¶ 17 (2013).
¶4 To establish a person's guilt as an accomplice to attempted first-degree murder pursuant to a plea agreement, the factual basis must demonstrate that person, "with the intent to promote or facilitate" attempted first-degree murder, "[s]olicit[ed] or command[ed] another person to commit" that offense, "[a]id[ed], counsel[ed], agree[d] to aid or attempt[ed] to aid another person in planning or committing" it, or "[p]rovide[d] means or opportunity to another person to commit" it. A.R.S. §§ 13-301, 13-303(A)(3); see also A.R.S. §§ 13-1001, 13-1105. Alderete's argument is essentially that the factual basis was insufficient because there was no evidence he was aware his passenger would shoot the victim. But, "intent to engage in the criminal venture may be shown by the relationship of the parties and their conduct before and after the offense." State v. Tison, 129 Ariz. 546, 553 (1981). Thus, that a person intended to aid in the commission of the offense may be inferred when the person acts as a getaway driver. Cf. State v. Axley, 132 Ariz. 383, 385, 393 (1982); State v. Parker, 121 Ariz. 172, 173-74 (App. 1978).
¶5 The factual basis here establishes that Alderete and his passenger drove to the scene of an earlier confrontation with the victim and, after the passenger shot the victim in the head from inside the car, Alderete drove away with the shooter. Additionally, Alderete admitted at the change-of-plea hearing that he had acted "in concert" with the shooter. These facts clearly permit the inference that Alderete intended to aid the shooter in committing first-degree murder. And, because the factual basis was sufficient, we also reject Alderete's related claim that counsel was ineffective in failing to understand accomplice liability and challenge the requisite sufficiency of his guilty plea. See State v. Bennett, 213 Ariz. 562, ¶ 21 (2006) (defendant claiming ineffective assistance must show deficient performance and resulting prejudice).
Alderete asserts, without support, that acting in concert is distinguishable from acting as an accomplice. But any distinction is irrelevant in this context. As we have noted, it is unnecessary for Alderete to have understood the precise legal terminology. See Ovante, 231 Ariz. 180, ¶ 17. The definition of "concert" includes an "agreement in design or plan: union formed by mutual communication of opinion and views," which would constitute accomplice liability on these facts. See concert, MERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary/concert (last visited Aug. 2, 2018).
¶6 To the extent Alderete reurges that his plea was involuntary because he was "never informed of the nature of accomplice liability," that claim does not warrant relief. For a plea to be valid, "the record must show that the defendant understood the nature of the charges against him and that his conduct fell within those charges." State v. Coleman, 152 Ariz. 583, 586 (App. 1987). However, a trial court need not "inform a defendant of each element of every crime with which he is charged." Id. As we have explained, Alderete acknowledged acting in concert with the shooter, evincing his understanding that his culpability rested on his cooperation, not his mere presence. Nothing more was required. And Alderete has not identified any evidence in the record supporting his claim that counsel failed to adequately inform him of the requisite intent to aid the shooter.
Alderete seizes on statements made by counsel at a hearing on release conditions and at sentencing contending he had been merely present during the offense as evidence that counsel lacked a correct understanding of accomplice liability. Counsel's statements, made in contexts where minimizing his client's conduct has persuasive value, say nothing about counsel's knowledge of the law or what information he may have given Alderete. And, notably absent from Alderete's petition for post-conviction relief is any affidavit describing his conversations with counsel or his understanding of the offense to which he pled guilty.
¶7 Alderete also contends that counsel was ineffective for failing to investigate his case. But, by pleading guilty, Alderete has waived all non-jurisdictional defects, including claims of ineffective assistance, except those related to the validity of his plea. See State v. Quick, 177 Ariz. 314, 316 (App. 1993). Thus, Alderete must allege he would not have pled guilty "but for counsel's deficient performance" and must provide "an allegation of specific facts which would allow a court to meaningfully assess why that deficiency was material to [his] decision" to waive his rights. State v. Bowers, 192 Ariz. 419, ¶ 25 (App. 1998). Alderete has not done so; this claim of ineffective assistance therefore fails.
¶8 Alderete additionally asserts that counsel was ineffective for failing to object on A.R.S. § 13-702(E) grounds when the trial court imposed a 10.5-year prison term. Pursuant to § 13-702(E), a court is required to "inform all of the parties before sentencing occurs of its intent to increase or decrease a sentence to the aggravated or mitigated sentence . . . . If the court fails to inform the parties, a party waives its right to be informed unless the party timely objects at the time of sentencing." Attempted first-degree murder is a class two felony, with a presumptive prison term of five years, a maximum term of ten years, and an aggravated term of 12.5 years. §§ 13-702(D), 13-1001(C)(1), 13-1105(D). But, even assuming that § 13-702(E) applies when the court imposes more than the maximum but less than the aggravated prison term and that counsel's failure to object could have no reasoned tactical basis, Alderete has not shown any likelihood the court would have imposed a lesser sentence. See Bennett, 213 Ariz. 562, ¶ 21 (claim of ineffective assistance requires showing of prejudice); State v. Denz, 232 Ariz. 441, ¶ 7 (App. 2013) (reasoned tactical decision by counsel cannot support claim of ineffective assistance). He has therefore failed to demonstrate resulting prejudice and has not made a colorable claim of ineffective assistance. See Bennett, 213 Ariz. 562, ¶ 21.
Pursuant to A.R.S. § 13-701(C), a trial court may impose the maximum prison term if there is at least one aggravating factor identified in § 13-701(D); the aggravated term may be imposed only if there are at least two such aggravating factors, § 13-702(B). Alderete does not argue the sentence imposed here was improper. --------
¶9 Although we grant review, relief is denied.